Citation Nr: 0843779
Decision Date: 12/19/08 Archive Date: 12/23/08
DOCKET NO. 06-01 674 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Veteran represented by: Kenneth M. Carpenter, Attorney
at Law
ATTORNEY FOR THE BOARD
M. Donohue, Associate Counsel
INTRODUCTION
The veteran served on active duty in the United States Army
from August 1963 to February 1968. Service in the Republic
of Vietnam is indicated by the record.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of an April 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri which, in part, denied service connection
for PTSD. The RO in Wichita, Kansas currently has
jurisdiction over the veteran's claim.
Issues not on appeal
In the above-mentioned April 2003 decision, the RO also
denied the veteran's claims of entitlement to service
connection for a skin condition, fatty lipoma (claimed as
"stomach lumps"), coronary artery disease and bilateral
hearing loss. The veteran's October 2003 notice of
disagreement indicated that he wished to appeal those issues
and a statement of the case (SOC) was issued by the RO in
December 2005 which addressed those claims. However, the
veteran's January 2006 substantive appeal addressed only the
issue of entitlement to service connection for PTSD. See 38
C.F.R. § 20.202 (2008) [if a SOC lists several issues, the
substantive appeal must either indicate that the appeal is
being perfected as to all issues or must specifically
identify the issues being appealed].
Accordingly, an appeal was not perfected as to the issues of
entitlement to service connection for a skin condition,
lipoma, coronary artery disease and/or bilateral hearing
loss, and those issues are not before the Board. See
Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to
38 U.S.C.A. § 7105(a), the filing of a notice of disagreement
initiates appellate review in the VA administrative
adjudication process, and the request for appellate review is
completed by the claimant's filing of a substantive appeal
after a statement of the case is issued by VA].
FINDINGS OF FACT
1. The veteran did not serve in combat.
2. The record does not include credible supporting evidence
verifying the occurrence of the veteran's claimed in-service
stressors.
CONCLUSION OF LAW
PTSD was not incurred as a result of the veteran's active
military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38
C.F.R. §§ 3.303, 3.304 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran seeks entitlement to service connection for PTSD.
In the interest of clarity, the Board will first discuss
certain preliminary matters. The Board will then render a
decision.
The Veterans Claims Assistance Act of 2000 (VCAA)
The Board has given consideration to the VCAA. The VCAA
includes an enhanced duty on the part of VA to notify a
claimant as to the information and evidence necessary to
substantiate claims for VA benefits. The VCAA also redefines
the obligations of VA with respect to its statutory duty to
assist claimants in the development of their claims. See
38 U.S.C.A. §§ 5103, 5103A (West 2002).
The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist. The Board
will now address these concepts within the context of the
circumstances presented in this case.
Standard of review
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102
(2008).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (the
Court) stated that "a veteran need only demonstrate that
there is an 'approximate balance of positive and negative
evidence' in order to prevail." To deny a claim on its
merits, the preponderance of the evidence must be against the
claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to VA that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].
After having carefully reviewed the record, the Board has
concluded that the notice requirements of the VCAA have been
satisfied with respect to the issue on appeal. The Board
observes that the veteran was informed of the evidentiary
requirements for service connection in a letter from the RO
dated December 10, 2002, including a request for evidence of
"a relationship between your current disability and an
injury, disease, or event in military service."
Crucially, the RO informed the veteran of VA's duty to assist
him in the development of his claim in the above-referenced
December 2002 letter, whereby the veteran was advised of the
provisions relating to the VCAA. Specifically, the veteran
was advised that VA would assist him with obtaining evidence
necessary to support his claim, including "medical records,
employment records, or records from other Federal agencies."
With respect to private treatment records, the letter
informed the veteran that the VA would make reasonable
efforts to obtain private or non-Federal medical records.
Furthermore, the VA included copies of VA Form 21-4142,
Authorization and Consent to Release Information, which the
veteran could complete to release private medical records to
the VA.
In the December 2002 letter the RO requested specific details
concerning the veteran's claimed PTSD, and included a PTSD
questionnaire for him to complete and return.
The Board notes that the December 2002 letter specifically
informed the veteran: "It's still your responsibility to
support your claim with appropriate evidence." This
informed the veteran that he could submit or identify
evidence other than what was specifically requested by the
RO. This complies with the "give us everything you've got"
provision formerly contained in 38 C.F.R. § 3.159(b) in that
it informed the veteran that he could submit or identify
evidence other than what was specifically requested by the
RO. [The Board observes that 38 C.F.R. § 3.159 was recently
revised, effective as of May 30, 2008. See 73 Fed. Reg.
23,353-23,356 (April 30, 2008). The final rule removes the
third sentence of 38 C.F.R. § 3.159(b)(1), which had stated
that VA will request the claimant to provide any evidence in
the claimant's possession that pertains to the claim.]
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court
observed that a claim of entitlement to service connection
consists of five elements: (1) veteran status; (2) existence
of a disability; (3) a connection between the veteran's
service and the disability; (4) degree of disability; and (5)
effective date. Because a service connection claim is
comprised of five elements, the Court further held that the
notice requirements of section 5103(a) apply generally to all
five elements of that claim. Therefore, upon receipt of an
application for a service connection claim, section 5103(a)
and section 3.159(b) require VA to review the information and
the evidence presented with the claim and to provide the
claimant with notice of what information and evidence not
previously provided, if any, will assist in substantiating or
is necessary to substantiate the elements of the claim as
reasonably contemplated by the application. This includes
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded.
With respect to the veteran's service connection claim,
elements (1) and (2) veteran status and existence of a
disability are not at issue. Moreover, elements (4) and (5),
degree of disability and effective date, are rendered moot
via the RO's denial of service connection for the veteran's
claimed PTSD. In other words, any lack advisement as to
those two elements is meaningless, because a disability
rating and effective date were not assigned. The veteran's
claim of entitlement to service connection was denied based
on element (3), connection between the veteran's service and
the claimed disability. As explained above, he has received
proper VCAA notice as to his obligations, and those of VA,
with respect to that crucial element. Because, as discussed
below, the Board is denying the veteran's claim, elements (4)
and (5) remain moot.
It is clear that the veteran's through his attorney is aware
of his obligations to support his claim with evidence. See
Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) [holding
that an appellant's representation by counsel "is a factor
that must be considered when determining whether that
appellant has been prejudiced by any notice error"].
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2008).
The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate his claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it. In particular, the VA has obtained the
veteran's service treatment records, VA outpatient medical
records, private medical records and provided him with a VA
examination.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2008). The veteran is represented by a seasoned attorney.
He has declined to exercise his option of presenting
testimony at a personal hearing.
Accordingly, the Board will proceed to a decision.
Relevant law and regulations
Service connection - in general
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303 (2008).
Additionally, service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. See 38 C.F.R. § 3.303(d)
(2008).
Specific criteria to establish service connection for PTSD
According to VA regulations, entitlement to service
connection for PTSD requires that three elements be present:
(1) medical evidence diagnosing PTSD; (2) combat status or
credible supporting evidence that the claimed in-service
stressors actually occurred; and (3) a link, established by
medical evidence, between current symptomatology and the
claimed in service stressors. See 38 C.F.R. § 3.304(f)
(2008); see also Cohen v. Brown, 10 Vet. App. 128 (1997).
Analysis
With respect to element (1), a current diagnosis of PTSD, the
veteran has been diagnosed with PTSD on several different
occasions. Consequently, element (1) of 38 C.F.R. § 3.304(f)
has been met.
With respect to element (2), stressor, either combat status
must be established or non-combat stressors must be
corroborated.
The veteran reported to the December 2002 VA examiner that he
was actively engaged in combat. He specifically stated that
he volunteered to be a door gunner on a helicopter and that
he was shot at while performing this duty. He also contends
that his base came under attack and that he was fired upon
and fired back.
The veteran did not receive any decorations or awards
indicative of combat status. His service personnel and
medical records are negative for any indication of combat
status or combat injuries. His military occupational
specialty (MOS) was that of a cook, a specialty which is not
associated with combat.
The veteran has been less than specific regarding his alleged
combat stressors.
He has indicated that he volunteered to serve as a door
gunner and was shot at.
The veteran has not provided basic specifics, such as the
unit involved, the location or an approximate date.
The veteran has indicated that his base camp came under
attack "three or four times." He has alleged that during
these attacks he was shot at and returned fire. However, he
has not provided the name of the base or an approximate date
for any of these attacks.
In December 2002, the RO requested that the veteran complete
a PTSD questionnaire in order elicit the facts necessary to
verify the veteran's alleged stressors. He failed to do so.
Given the veteran's MOS of cook and the lack of any objective
evidence of participation in combat in the veteran's military
records, the Board finds his statements in this regard to be
incredible and utterly lacking in probative value.
The Board accordingly finds that combat status has not been
demonstrated in this case.
Since combat status has not been demonstrated, the veteran's
lay testimony alone will not be enough to establish the
occurrence of the alleged stressors. See Moreau, supra.
Therefore, to substantiate the claim, the record must contain
service records or other credible evidence which supports and
does not contradict the veteran's testimony.
In addition to the purported stressors of volunteering as a
door gunner and being involved in repelling several attacks
on his base, the veteran claims to have witnessed soldiers
trying to assemble body parts in order to establish as much
of a person as they could. The lack of detail the veteran
has provided with respect to this stressor makes verification
impossible.
In sum, the veteran has reported a number of unverifiable
stressors from service. As was explained above, these cannot
serve as a basis for the grant of service connection for
PTSD. Accordingly, with no proof of an in-service stressor,
element (2) of 38 C.F.R. § 3.304(f) is not met, and the claim
fails on this basis.
For the sake of completeness the Board will address the
remaining element of 38 C.F.R. § 3.304(f), medical evidence
of a nexus between the veteran's PTSD and his claimed PTSD
stressors, the evidence of record contains a statement from
the December 2002 VA examiner who indicted that the veteran
has PTSD from childhood trauma and combat experiences. This
statement relies solely on the above-mentioned uncorroborated
stressors as reported by the veteran. The nexus opinion,
based on uncorroborated statements of the veteran, is lacking
in probative value. See Swann v. Brown, 5 Vet. App. 229, 233
(1993) [generally observing that a medical opinion premised
upon an unsubstantiated account is of no probative value, and
does not serve to verify the occurrences described]; Reonal
v. Brown,
5 Vet. App. 458, 461 (1993) [the Board is not bound to accept
a physician's opinion when it is based exclusively on the
recitations of a claimant]. Therefore, element (3) is also
not met and the claim fails on that basis as well.
Conclusion
For the reasons set out above, the Board has determined that
the criteria for the establishment of entitlement to service
connection for PTSD have not been met. A preponderance of
the evidence is against the veteran's claim. The benefit
sought on appeal is therefore denied.
Additional comments
In his substantive appeal dated September 2005, the veteran,
through his attorney, attempted to indicate that the facts of
this claim give rise to a so-called "presumption of service
connection", citing Shedden v. Principi, 381 F.3d 1163 (Fed.
Cir. 2004). Specifically, the veteran's representative
points to a 1965 diagnosis of situational anxiety as proof of
an in-service mental disease. He argues that such a
diagnosis automatically entitles the veteran to benefits.
The Federal Circuit in Shedden held that under 38 U.S.C. §
105, in-service diseases or injuries are presumed to have
been incurred in the line of duty rather than as a product of
misconduct. See Thomas v. Nicholson, 423 F.3d 1279 (Fed Cir.
2005) citing Shedden at 1166 [section 105 creates a
presumption of service connection for injuries that occur
during active duty unless evidence establishes that the
injury was the result of the person's own misconduct]. Here,
misconduct is not at issue, so the Federal Circuit's holding
in Shedden is not applicable in this case.
Contrary to the argument made by the veteran's
representative, the Federal Circuit stated that "the mere
fact that a serviceman has suffered a service-connected
disease or injury does not automatically lead to compensation
for future disabilities." See Shedden at 1166. There is
nothing in the Federal Circuit's holding that can be
interpreted as eliminating the requirements of section
3.304(f).
Furthermore, the medical evidence indicates that the veteran
was diagnosed with situational anxiety in response to being
reprimanded for failing an equipment inspection. The veteran
has not indentified this incident as an in-service stressor
and such an event hardly qualifies as a "traumatic event in
which . . . the [veteran] experienced, witnessed or was
confronted with . . . actual or threatened death or serious
injury, or a threat to the physical integrity of self or
others...." See DSM-IV, p.427; see generally 38 C.F.R.
§ 4.125(a) (2008). Critically, the situational anxiety
diagnosis was not in any way associated with the now-claimed
stressors.
The veteran's claim is being denied based on a lack of
credible evidence that an in-service stressor occurred and
the lack of a medical nexus linking a diagnosis of PTSD to an
in-service stressor. Such situation is not within the ambit
of Shedden.
ORDER
Entitlement to service connection for PTSD is denied.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs